With a historic impeachment trial only hours away, President Bill Clinton’s lawyers and the House Republican prosecutors gathered in the temporary office of Chief Justice William Rehnquist, speaking quietly as they waited for him to arrive.
Rehnquist had asked for the meeting, and the lawyers speculated on what words of wisdom he wanted to share. Certainly he would be prepared to provide sweeping historical context, emphasize the stakes for the nation or at least lay down detailed rules for the trial. When he arrived, Rehnquist spent a few minutes circulating and greeting the lawyers. Then the room fell quiet as he began to speak. He wouldn’t allocate tables or decide seating, he said, because that was up to the Senate.
He paused, looking around the room at the veteran attorneys and seasoned politicians poised to battle over the future of the Clinton presidency.
“Fight fair,” he said in his distinctive baritone. “Thank you very much.”
And he turned on his heel and left the room.
There were no grand pronouncements, no expositions on democracy and the Constitution. Starkly efficient and scrupulously evenhanded, Rehnquist’s direction to the lawyers reflected a leader with a strong sense of self, one who ardently believed that no man or woman was bigger than the institution he or she served. Whether in the Supreme Court or the Capitol, he demanded that people respect the institution, play fairly and stick to the rules.
“We all said, `Is that all?'” one of the lawyers recalled. “But then I said, `Actually, that’s pretty good.’ He wanted to remind us–in a very straightforward, laconic way–that that’s what he wanted us to do.”
Rehnquist died Saturday from complications of thyroid cancer, having served 33 years on the court, 19 of them as chief justice. He is certain to be remembered as one of the court’s most effective managers, a justice with strong conservative views who managed to maintain cohesion and collegiality on a closely divided court that tackled some of society’s most contentious and bitterly fought social and political issues.
Conservative pioneer
A fiery dissenter when he joined the court, Rehnquist helped create the modern conservative legal movement and, during his tenure, eventually molded others to his views on law enforcement and the scope of federal power.
With his strong beliefs on the balance of power between the federal government and the states, he led a court that was assertive about its own authority and, more than any court in modern times, willing to invalidate federal legislation that infringed on traditional state concerns.
But on such leading issues as race, abortion and gay rights, Rehnquist, for all his influence, remained in dissent. Although Rehnquist was undeniably conservative, the “Rehnquist Court” could hardly be so labeled.
The court ultimately refused to abandon key civil rights rulings from the 1960s and 1970s, despite Rehnquist’s views to the contrary. Women still have a constitutional right to an abortion. Minorities still can benefit from affirmative action. Gays have greater constitutional protections than ever before.
On his favored cause of curbing congressional power, Rehnquist did succeed in pushing the court to give greater power and freedom to the states, but he hardly achieved a revolution.
His legacy is a more overarching one because he has, quite literally, changed the terms of the debate. His outlook on the law–that courts should strictly interpret laws, not seek to solve problems–was not embraced by some of his colleagues when he joined the bench more than three decades ago. But today, arguments are framed in terms of the law. The language in court opinions, even by the court’s liberal justices, has changed.
Rehnquist’s retirement had been widely expected after he announced in late October that he was suffering from thyroid cancer. A tracheotomy and grueling chemotherapy and radiation treatments caused him to miss oral arguments for four months, prompting widespread speculation that he would not return.
Weak and tired, he lost his distinctive voice–Jimmy Stewart, but a few octaves lower–as he performed his duties as the nation’s chief justice, including swearing in President Bush for a second term in a wintry January inauguration ceremony.
`Tough old Lutheran’ returns
But Rehnquist, ever the “tough old Lutheran,” as one former clerk called him, returned to the tall black leather chair at the middle of the court’s bench in March. With a tracheotomy tube still in place, his voice was windy and higher-pitched. But he did not hesitate to throw questions at lawyers, and he made no concessions to his softer voice. He didn’t lean up to the microphone to talk but commanded the court sitting back in his seat.
The White House had assumed he would retire at the end of June, but it was his old law school classmate, Justice Sandra Day O’Connor, who stepped down instead. He announced in July that he had no immediate plans to retire and would do the job as long as he was able.
Some have criticized that decision as placing his personal interests above those of the court, because it could be without a permanent leader for several months. But others, such as former administrative assistant Harvey Rishikof, said it instead reflected his vision of the judiciary as impartial and above politics: He wouldn’t retire solely to make things simpler for a Republican president.
President Richard Nixon nominated Rehnquist to be an associate justice on the court in 1971, at age 47, after he had headed the Justice Department’s Office of Legal Counsel for three years. Sporting Elvis-like sideburns and the boldly patterned clothes of the early 1970s, he was not the typical prospective justice. Nixon once asked, “Who’s the guy dressed like a clown?”
Rehnquist had practiced law for 16 years in Phoenix, becoming active in conservative causes. He had lived briefly in Washington, decades before his nomination, when he clerked for Justice Robert Jackson after graduating first in his class from Stanford Law School. While clerking for Jackson, he wrote a controversial memo in the landmark school desegregation case Brown vs. Board of Education that appeared to support upholding the “separate but equal” doctrine.
During his confirmation hearings, Rehnquist explained that he was trying to articulate what he believed would be Jackson’s views, emphasizing deference to state legislatures. He ultimately was confirmed, 68-26.
With a fierce intellect, Rehnquist quickly revealed his conservative views on law enforcement and the balance of power between the federal government and the states, but he so frequently was the sole dissenter that his clerks in 1974 presented him with a small Lone Ranger doll.
His dissents, forceful and blunt, were the source of many conservative ideas, particularly in the area of states’ rights. His opinions in those areas have become the majority view, as the court in recent years has voted 5-4 in a string of cases to scale back Congress’ power.
When Chief Justice Warren Burger retired in 1986, President Ronald Reagan elevated Rehnquist to the chief’s position. His confirmation, dubbed the “Rehnquisition” by supporters, again was contentious.
But once confirmed as chief, Rehnquist viewed his role differently. Now leading eight other strong personalities, often with widely divergent views, he carried a deep sense of his obligation as a caretaker of the institution.
He largely stopped writing his firebrand dissents, and with the appointments of Justices Antonin Scalia and Clarence Thomas to the court, he was no longer the Lone Ranger. Recognizing the transformation, his clerks gave him a large wooden steering wheel from a ship, which he hung in his office. He had become the captain, steering the court and the federal judiciary.
“He’s had the intellectual powers but also the personal skills to, in essence, move from the Lone Ranger when he started out in the 1970s to emerge as the dominant judicial voice in his era,” said Maureen Mahoney, a prominent Washington attorney who clerked for Rehnquist. “It’s because of the tremendous respect he engenders from people who work with him, of all ideologies.”
Admired by colleagues
His navigational skills have indeed prompted loyalty from unexpected quarters. Justice Ruth Bader Ginsburg, a liberal Clinton appointee, referred fondly to him as “my chief.” O’Connor, who sometimes refused to give Rehnquist a conservative majority on key social issues, spoke admiringly about how he held no grudges when cases did not go his way.
“He is a great man. There is nothing I could say to tease him,” Thomas told clerks several years ago, declining to help in a skit about the chief.
Former clerks frequently mention his photographic memory. Several tell of discussions in which he would recall a key case that none of the other lawyers had considered–then direct them to the specific page in a law book where they could find it.
From the bench, Rehnquist was stern and formidable. When a small red light went on indicating a lawyer had run out of time during an argument, he would cut the attorney off in midsyllable, almost as if he had opened a trap door. Lawyers, fellow justices–all had to follow the same rules and abide by the same time limits, and all had to get to the point.
Kenneth Starr, the conservative former federal appeals court judge and independent counsel in the Clinton case, once began an argument by saying, “Let me share with you a bit of the record in the case.”
“Why don’t you just tell us,” boomed Rehnquist, cutting him off, “rather than sharing it?” At the time, Starr was solicitor general of the United States, representing the government’s positions before the Supreme Court.
Rehnquist frequently admonished Scalia, a combative fellow conservative, for relentlessly questioning lawyers. “Let her respond” was a typical rebuke, as he tersely said in one argument when Scalia interrupted a Georgetown University law professor.
Stickler for efficiency
Rehnquist streamlined the court’s operations and made the court–and the justices and law clerks–more efficient, although some clerks have complained that this efficiency sacrificed a desirable give-and-take. He scaled back the number of cases the court heard each term and shortened the conferences when the justices met to discuss cases. He complained if justices dawdled over opinions and would not assign important cases to those with too many cases pending.
“How hard can it be?” he would ask in frustration when a justice–typically David Souter–took longer than he thought necessary.
Some clerks who worked for Rehnquist before the era of word processors remembered being told by predecessors that he would tear their draft opinions out of their typewriters if they weren’t finished within 10 days after an argument. They believed it.
“He doesn’t try to build an empire for himself. He’s just trying to get the opinions out,” said Lindley Brenza, a Denver lawyer who clerked for Rehnquist. “It traces back to his sense of the institution as one that’s run by men and women, not gods. That’s something that a lot of justices lose track of pretty quickly after they become justices.”
He declined to use an imposing desk that his predecessor Burger had installed in the middle of the court’s conference room where the justices discuss cases. He employed only three clerks, though he was entitled to five. He would pile into the old car of a law clerk for his weekly tennis matches with his clerks at a public court in Washington, declining security guards and paid drivers.
Once, while on their way to the weekly tennis match, a clerk asked Rehnquist to name his favorite case. “Celotex,” he responded after only a moment.
That 1995 case, Celotex Corp. vs. Edwards, was enormously important to lawyers in the trenches of litigation. It settled the complicated question of how to resolve cases before trial, ensuring a more smooth administration of justice.
“That shows how he viewed the job: He [saw] himself not as someone who’s a philosopher king, the way he’s painted, but a human being, a lawyer, doing a job–which is an important job, but a job that exists to solve disputes, to solve problems,” said Neil Richards, a law professor at Washington University in St. Louis and former clerk. “That case did that. It settled things.”
Rehnquist wanted to be sure the Supreme Court gave clear direction to the lower courts. As chief justice, when he was in the majority on a case, he would assign the opinion.
He was skilled at assigning opinions that would keep five justices together for a majority–which explains why the more moderate O’Connor often got the court’s most compelling opinion assignments. Rehnquist knew she, unlike Scalia, was unlikely to push away other justices and see her majority fall apart.
Rehnquist himself was willing to make compromises. Five years ago, in Dickerson vs. United States, Rehnquist wrote a 7-2 opinion saying the Constitution required police to give suspects Miranda warnings. That position appeared contrary to his earlier views, although the ruling was less important in light of intervening ones.
He also signed onto the five-justice majority opinion in Bush vs. Gore, a case that decided the 2000 presidential election and marked one of the most bitter moments in the court’s history. Rehnquist’s concurring opinion was arguably better reasoned and more defensible than the majority’s, although Justices O’Connor and Anthony Kennedy declined to sign on.
Rehnquist’s legal compromises did not reflect great shifts in his thinking; he remained confident in his approach, secure in himself and impervious to public criticism. Asked in a 1985 interview with The New York Times Magazine whether he had changed or grown in his then-13 years on the court, he said, “You equate change with growth, then.”
“He always had a sense of who he is,” said David Leitch, a former clerk and now general counsel of Ford Motor Co. “The William Rehnquist you saw then [was] like the William Rehnquist you [saw] now. He [was] very grounded.”
Another sign of his independence was seen in his choice of clerks. Most Supreme Court justices hire clerks from top law schools–Harvard, Yale, Stanford, the University of Chicago, Columbia–but Rehnquist, who holds degrees from Harvard and Stanford, made a point of also hiring from schools considered a notch beneath.
His hiring decisions also reflected his fascination with geography and a desire to learn about the world, honed during his Army years when he was a weather observer in Egypt and Morocco. He liked hiring clerks from different states and would begin interviews by asking candidates to tell him about their hometowns. He would encourage them to return home after their clerkships and practice law.
Broad range of interests
Former clerks frequently mention an intellectual curiosity that extended well beyond the confines of the Supreme Court. In 1984 Rehnquist went to Richmond, Va., and became the first justice in more than 100 years to preside over an ordinary trial, an experience he thought would be interesting.
Interested in painting, he took night classes in 1985 at a Virginia community center. One class conflicted with Reagan’s State of the Union address, and his clerks assumed he would miss the class.
“He said, `No. I’ve paid $25 for five classes. I can’t miss it,'” a former clerk recalled.
On his regular walks around the court, when he discussed cases with clerks and generally went unrecognized by tourists, he sometimes would stop and talk to the gardeners about plants and horticulture.
“It was in a totally intellectually curious way,” recalled former clerk Bruce Braun, a partner at Chicago’s Winston & Strawn. “He just wanted to know about things.”
Associates would joke that they wished they knew about Rehnquist’s stock market investments, because the subjects of the books he wrote in his spare time later became urgently newsworthy: impeachment, a contested presidential election and civil liberties in wartime.
A softer side
Off the bench, Rehnquist could be warm and funny. He was devoted to his wife, Natalie, who died in 1991 at age 62 after a long bout with ovarian cancer. The couple had three children, and Rehnquist left behind eight grandchildren.
He always remembered the names of law clerks’ spouses, and he asked about their sick parents. His gifts and his questions were not the generic equivalent of fruit baskets. He once gave a Mormon clerk an old iron nail he had picked up in Utah, where he watched workers remodel one of Brigham Young’s pioneer homes.
Rehnquist was a creature of routine and moderation. When having lunch with clerks at the Monocle, his favorite restaurant on Capitol Hill, he always ordered a cheeseburger–pink inside–and, staying true to his Milwaukee roots, a “Miller’s” beer. He smoked one cigarette afterward, not two.
Rehnquist relished $1 bets with friends and clerks on any subject–football, the World Series, the amount of an overnight snowfall. He didn’t like to lose bets or games. In his tennis matches, he paired with the clerk who was the best player.
And he had a sense of humor. Once Braun and his co-clerks arranged to have several players on the Milwaukee Brewers baseball team tape birthday greetings to Rehnquist during a practice.
On the tape, Sal Bando, the All-Star third baseman, said to the head of the nation’s third branch of government: “Hey, chief baby. Happy birthday. Stay conservative.” Another player said, “Chief justice? I didn’t vote for him. How did he get to be chief justice?”
Rehnquist laughed heartily.
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IN REHNQUIST’S WORDS
“Thus, by a tour de force reminiscent not of jurists such as Hale, Holmes, and Hughes, but of escape artists such as Houdini, the Court eludes clear statutory language, `uncontradicted’ legislative history, and uniform precedent in concluding that employers are, after all, permitted to consider race in making employment decisions.”
–United Steelworkers vs. Weber, 1979 (Rehnquist, J., dissenting)
“[T]his Court seems to regard the Equal Protection Clause as a cat-o’-nine-tails to be kept in the judicial closet as a threat to legislatures which may, in the view of the judiciary, get out of hand and pass `arbitrary,’ `illogical,’ or `unreasonable’ laws.”
–Trimble vs. Gordon, 1977 (Rehnquist, J., dissenting)
“This argument calls to mind what was said of the Roman Legions: that they may have lost battles, but they never lost a war, since they never let a war end until they had won it.”
–Kassel vs. Consolidated Freightways Corp., 1981 (Rehnquist, J., dissenting)
“The comments in the dissenting opinion about the proper cases for which to look for the correct statement of the equal protection rational-basis standard, and about what cases limit earlier cases, are just that: comments in a dissenting opinion.”
–U.S. Railroad Retirement Board vs. Fritz, 1980
“The Court’s role as the final expositor of the Constitution is well established, but its role as a Platonic guardian admonishing those responsible to public opinion as if they were truant schoolchildren has no similar place in our system of government.”
–Texas vs. Johnson, 1989 (Rehnquist, C.J., dissenting)
“Those who fought valiantly but vainly defended the heights of Bunker Hill in 1775 made it possible that men such as James Madison might later sit in the first Congress and draft the Bill of Rights to the Constitution. The post-Civil War Congresses which drafted the Civil War Amendments to the Constitution could not have accomplished their task without the blood of brave men on both sides which was shed at Shiloh, Gettysburg, and Cold Harbor. If those responsible for these Amendments, by feats of valor or efforts of draftsmanship, could have lived to know that their efforts had enshrined in the Constitution the right to commercial vendors of contraceptives to peddle them to unmarried minors through such means as window displays and vending machines located in the men’s room of truck stops, notwithstanding the considered judgment of the New York Legislature to the contrary, it is not difficult to imagine their reaction.”
–Carey vs. Population Services International, 1977 (Rehnquist, J., dissenting)
“The Court, I believe, makes an even greater mistake in failing to apply its newly announced rule to the facts of this case. Instead of thus illustrating how the rule works, it contents itself with abstractions and paraphrases of abstractions, so that its opinion sounds much like a treatise about cooking by someone who has never cooked before and has no intention of starting now.”
–Anderson vs. Liberty Lobby Inc., 1986 (Rehnquist, J., dissenting)
“We start with first principles. The Constitution creates a Federal Government of enumerated powers.”
–United States vs. Lopez, 1995
“The sum of the joint opinion’s labors in the name of stare decisis and `legitimacy’ is this: Roe v. Wade stands as a sort of judicial Potemkin Village, which may be pointed out to passers-by as a monument to the importance of adhering to precedent. But behind the facade, an entirely new method of analysis, without any roots in constitutional law, is imported to decide the constitutionality of state laws regulating abortion.”
–Planned Parenthood of Southeastern Pennsylvania vs. Casey, 1992 (Rehnquist, C.J., concurring in part and dissenting in part)
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jgreenberg@tribune.com
